Pot Matters: Sessions for Attorney General? Game On!

Sen. Jeff Sessions, the Republican from Alabama, will be nominated to be attorney general in the upcoming Trump Administration. What will he do about legal marijuana in various states and the conflict between state and federal law on this subject?

The honest answer here is that only he knows, but that the Senate is sure to ask him about this during his confirmation hearings. He is described as an ultra-conservative, and is not (to put it diplomatically) known to be a friend or supporter of marijuana-law reform.

Indeed, a famous anecdote has Sessions saying, presumably jocularly, that he thought the Ku Klux Klan was “okay until I found out they smoked pot.”

What can he do? The only reasons legal marijuana sales take place in state-regulated industries is that the US Department of Justice has decided to allow it, based on a policy decision by the attorney general’s office to utilize prosecutorial discretion and not pursue federal prosecution of states and individual companies for violations of federal law (e.g. the Controlled Substances Act). So the attorney general, in this administration or the next, can decide to void that policy, enforce federal law, and shut down the legal marijuana industry.

Will he do this? Probably not. Why? Because he is not stupid, as the costs of such a move will surely exceed the benefits. First, the Trump Administration can only shut down the legal market, but they can’t force states to arrest people for marijuana offenses.

More important, and something lost in many discussions of this issue, there is more at stake here than so-called recreational-marijuana sales in states like Colorado, Washington, Massachusetts and California (to name a few.) When most people talk about legalized marijuana, they are thinking about recreational use. But marijuana is legal for medical use in many states too. A federal crackdown on legal marijuana sales will have widespread consequences on the medical-marijuana market as well as the emerging recreational market.

Donald Trump supports medical marijuana. Trump has stated, on Bill O’Reilly’s show for example, that he is “a hundred percent” in favor of it. Enforcing federal law will eliminate access to medical marijuana. This creates a dilemma. Any crackdown on state legalization laws goes against Trump’s own position in medical marijuana, and it forces the issue of federal marijuana law reform. Because if medical marijuana is acceptable, and federal law prevents access to marijuana under state law, the logical response is to change federal law.

Sessions faces other problems that are more pressing than this one. Immigration policy is going to be a major priority for the Trump Department of Justice, and this will require a tremendous allocation of scarce resources—in other words, Trump’s immigration policy will require a lot of attention from prosecutors and a larger share of the department’s budget. It will require a tremendous amount of attention to public relations and political consultations. This will not leave much time for a marijuana crackdown.

Another problem Sessions faces is his past history with respect to racial justice. Stories of his hostility to civil rights laws and remarks he had made ultimately sunk his 1986 nomination to be a federal judge—this by a nomination by Ronald Reagan and in a Republican controlled Senate! This too will invite a lot of discussion during his confirmation hearings, and over time make it politically problematic to promote policies that, in terms of actual impacts, result in increased arrests of blacks and other minorities.

And then there is the matter of who will push back against enforcement of federal law in this area—and we’re not talking about the Democrats, or liberal advocacy groups such as the American Civil Liberties Union (ACLU). Here the opposition comes from individual states, lots of them, motivated by loss of tax revenue as well as something even more powerful—the will of the voters. In this fight, the strategy to rely on ballot initiatives to advance legalization pays additional dividends. Legalization is the will of the people in these states, and political leaders in these places understand this.

The Trump Administration is a minority government, winning the Electoral College while losing he popular vote in the 2016 Presidential election. They have limited political capital with which to face public opposition to their policies. The priorities of this administration and a Sessions-led Justice Department are immigration and terrorism. On these and other issues Sessions will take a hard line with respect to civil liberties, and areas that will receive less favorable treatment from the Justice Department under this attorney general include voting rights, criminal justice reform, and marriage equality.

While these priorities and ideological perspectives are clearly hostile to marijuana legalization and related reforms, they also indicate that there are simply other issues more important to the incoming attorney general. This makes the level of public support for legalization, and the ballot-based state’s rights basis for medical and recreational marijuana legalization more formidable in the face of a federal challenge. In more simple language, these changes will be hard to undo, and efforts to undo them will be costly in terms of real money and political capital.

If Sessions wants to take on such a battle, advocates of legalization, including the states which have passes such laws, will put up a vigorous fight. The new attorney general has other and more important (for the President who he serves) battles to fight. But if he is foolish enough to start this battle, it will likely backfire and further advance legalization rather than stifle it. Game on.